San Francisco police lab and Deborah Madden

Still trying to perfect the judicial system.

"Scandal at San Francisco police lab may unravel hundreds of cases"

After criminologist admits stealing drugs, officials discover a past conviction that should have been disclosed before she testified at trials. The D.A., an attorney general candidate, scrambles to change policy and review old cases.

by

Maura Dolan

June 3rd, 2010

Los Angeles Times

A scandal that has shaken San Francisco's criminal justice system and rocked the race for state attorney general began with a criminalist who allegedly stole drugs from a police laboratory.

Investigators said Deborah Madden, a longtime Police Department criminalist who testified for the prosecution in scores of cases, told them she skimmed cocaine from the lab to help her quit drinking. She also implicated other analysts in sloppy investigative work.

But the revelation that reverberated most was about Madden's past: She had been convicted of misdemeanor domestic violence in 2008, a fact known to her supervisor but never revealed to prosecutors or defense lawyers when she testified.

Under Brady vs. Maryland, a 1963 U.S. Supreme Court ruling, prosecutors are required to disclose evidence helpful to the defense if it would likely change the outcome of a case. Madden's alleged thievery has sparked revelations that Dist. Atty. Kamala Harris, who is running for state attorney general, and her predecessors failed to seek and disclose potentially incriminating information about law enforcement witnesses.

"It was kind of a like a 'don't ask, don't tell' policy," said Jeff Adachi, the elected head of the Public Defender's office. "The police weren't telling and the district attorney wasn't asking."

Madden's admissions have prompted Harris to dismiss 700 pending drug cases and the police to shut down the drug lab. They also have sparked an ongoing background review of law enforcement personnel who may have testified for the prosecution.

Once the review is complete, prosecutors and defense lawyers will have to comb through a multitude of cases in which witnesses with undisclosed misconduct testified. Although felons are barred by law from being uniformed police officers, some officers could have misdemeanor convictions.

Adachi said that more than 100 police employees may have a history of misconduct that should have been disclosed and that "hundreds, if not thousands" of criminal cases were likely to have been affected.

Harris' opponents in the race for the Democratic nomination for attorney general have used the scandal to pummel her record. Former Facebook Inc. executive Chris Kelly has accused Harris of "extraordinary malfeasance," and former Los Angeles City Atty. Rocky Delgadillo also has blamed her for the problems.

Her defenders say she inherited a dysfunctional office and moved quickly to make changes once she learned that law enforcement witnesses had backgrounds that required disclosure.

"You have a duty to turn over evidence that is exculpatory that is in your possession, but you don't have a duty to find it," said UC Hastings Law Professor Rory Little, a former federal prosecutor. But he added, "It is stupid not to ask" potential witnesses for such information.

He estimated that 90% of prosecutor's offices in the U.S. have no system for determining whether law enforcement witnesses have records that should be disclosed, although Los Angeles has had such a policy in place for years.

"Until a case blows up, you tend not to do it because police unions resist it," Little said. "The D.A.'s office would assume the cops aren't using a chemist who steals drugs and has a conviction. But you cannot depend on people to disclose this kind of embarrassing information voluntarily. You are going to have to put a system in place that discovers it."

Harris established a 13-page internal policy on April 13, but that has not spared her from criticism.

San Francisco County Superior Court Judge Anne-Christine Massullo lectured Harris' office in a ruling last month to be "more mindful" of due process.

A spokeswoman for Harris said she hopes to refile the drug cases that were dismissed, after the evidence is tested by outside laboratories. But Golden Gate University Law Professor Peter Keane predicted that "many cases are going to be fatally defective and are going to wind up being dumped."

"Ninety-nine percent of them will be cheap dope cases," said Keane, a former San Francisco public defender. "I doubt you will see anyone walking off death row as a result of this."

He said the revelations have highlighted the "stumblebum nature of the criminal justice system in San Francisco," which he contrasted to what he viewed as more professional law enforcement in Los Angeles and New York.

"You can't lay this entirely on Harris' doorstep," Keane said. "It surfaced on her watch, but it has been endemic for a long time."

Police Chief George Gascon, who was hired from the Los Angeles Police Department, has said he noticed the absence of a system for learning about so-called Brady material not long after he took over the department. He said he discussed it with the D.A.'s office in September.

Prosecutors said they were prepared to address the problem before Madden's alleged theft was uncovered.

Hastings Law Professor David Faigman, who specializes in forensic science, said Madden's case did not surprise him. He recalled taking a class to the drug lab several years ago and seeing open garbage bags of what appeared to be marijuana laying on the floor.

"Courts need to be more attentive to what is going on in laboratories," Faigman said. "The courts have been trusting them, and there is good reason to mistrust."